Topic: Law and Civil Liberties

TechLiberationFront Turns Five

The TechLiberationFront blog turns five today. Happy Birthday, TLF!

Over the last five years, the TLF gang has produced over 4,000 intriguing and enlightening posts on technology policy, applying their free-market, pro-innovation perspective to network management, intellectual property, government transparency, privacy, and much more. Cato alum Adam Thierer has a birthday post up that’s a worthy review. Check out the site if you aren’t already a reader.

Notably, today you’ll see a new post by Jerry Brito about the roll-out of a tool called RECAP, which seeks to make the government’s PACER legal document system more open. RECAP seeks to improve upon PACER’s “lousy access to data that would be useful not just to lawyers and litigants, but to bloggers, librarians, reporters, and scholars.” RECAP happens to be a project of Cato adjunct scholar Tim Lee.

Arrogant Judges

Item:  Judge sends a man to jail for yawning in court.   A six month jail sentence, if you can believe it.  The Cambridge arrest of the Harvard professor was an example of how the police can abuse their power by arresting people for annoying or obnoxious conduct (not real crimes!). 

This is an example of how judges abuse their power in a similar fashion.  Judges do need to maintain order in court, but this judge did not order the man to leave and did not mete out a fine.  If judges are  going to go so far as to jail a spectator, the prisoner ought to be released (in almost all cases) on his/her own recognizance, and the case should be decided by a jury, not the judge (who is now a witness). 

Item:  Judge says his conduct — deflating the tires of someone’s vehicle — wasn’t a “big deal.”  Compared to what sir?  A person who smokes a  marijuana cigarette in her home to alleviate back pain?  Seems to me that we’re lucky this judge was found out on this.  Not the type of thing we should expect or tolerate from a judge (to say the least).

But there is some good news today: When a local cop was speeding through stop signs and red lights without using a siren or flashing lights, and then broadsided a car,  killing Ashley McIntosh, the officer tried to argue that she was immune from a lawsuit because she was on official state business.  Judge Terrence Ney ruled that the cop’s belief that she was acting under special emergency circumstances did not make it so.   This judge understands that in a free society, state agents do not have carte blanche.  Good judging in action.

Amateur Hour at DHS

The controversial Department of Homeland Security (DHS) report Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment stirred criticism that the DHS had turned away from monitoring real terrorism plots and was now labeling veterans, pro-life groups, and limited government advocates as threats to national security. Consider those fears vindicated.

Americans for Limited Government (ALG) filed a Freedom of Information Act request for the documents and correspondence that supported the DHS report. The result: DHS sent a letter and list of the sources used to assess a significant number of innocent Americans as potential terrorists.

Seriously, read the whole thing. This collection of open source material amounts to an afternoon of internet browsing. Several arrests and indictments are mentioned, but newspapers and blogs are used instead of primary documents such as actual arrest reports and indictments that are available over the internet.

When a government agency charged with the physical security of the nation’s borders is running around on the internet looking for accusations of racism instead of using actual law enforcement and intelligence reports to justify its threat assessments, we are all in trouble. As Jeffrey Rosen has said, the biggest problem with DHS is that it was “a bureaucratic and philosophical mistake.”

Create a bureaucracy designed to inflate fears and issue color-coded threat levels, and that is what you will get. But don’t be surprised when TSA agents at the airport decide to go beyond their aviation security mission and get rebuked by a federal judge. Expect people lawfully traveling with cash to get detained without probable cause or even reasonable suspicion that they are breaking the law or pose a threat to airline safety. Anticipate that the “no-fly” list will become a “no-rights” list when a politician can seek political advantage by advocating that anyone designated for double-secret probation be denied their Second Amendment rights.

In related news, Jonathan Turley highlights the fact that English comedian Paul O’Grady was held on suspicion of being an illegal alien from Cuba because of his “funny accent.”

Your tax dollars at work.

Obama Channels John Ashcroft

At his town meeting in New Hampshire, President Obama urged people not to listen to those who seek to “scare and mislead the American people.” Meanwhile, his new White House website “Reality Check” – your tax dollars at work, folks, on political propaganda – warns supporters that “the road ahead will surely reveal more aggressive efforts from defenders of the status quo to confuse and scare Americans with half-truths and outright lies.”

I immediately thought of former Attorney General John Ashcroft’s notorious declaration in December 2001: “to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve.”

Presidents and their teams don’t like criticism. They have total access to the media – primetime, nationally televised speeches and press conferences, weekly radio addresses, websites, massive party and political organizations, journalists at their beck and call. Their every passing comment is news. Their speeches dominate the headlines. They set the agenda, whether it’s the Patriot Act or health care bills. And yet they can’t abide criticism.

And when the criticism is effective, they lash out. They denounce their opponents for seeking to ”scare peace-loving people with phantoms of lost liberties” or “confuse and scare Americans with half-truths and outright lies.” (Quick: which one of those was 2001, and which was 2009?)

But the fact is that the Bush administration’s actions after 9/11 really did result in a loss of liberty, and the Obama administration’s plans for our health care really should scare Americans. And libertarians have been, and will continue to be, in the forefront of Americans resisting intrusions on liberty by administrations from both parties. They won’t be dissuaded by Nixonian claims that dissent and criticism are divisive and damaging to national unity.

PASS ID: National ID v3.0?

Michigan state representative Paul Opsommer (R) fits PASS ID into the overall national ID picture:

As politicians, we see firsthand how often things are simply retooled, renamed and resubmitted. And in the case of REAL ID, which has its roots in failed attempts to implement AAMVA’s Driver’s License Agreement (DLA), it would not be the first time the concept behind a “one license, one record” national ID card was being repackaged.

Sotomayor Confirmed, Constitutional Debate Continues

All Americans should take pride in seeing our first Hispanic Supreme Court justice (not counting Benjamin Cardozo).  While this moment should have belonged to Miguel Estrada—who was denied even a vote by an unprecedented Democratic filibuster—we should nevertheless celebrate Sonia Sotomayor’s rise from very humble beginnings to reach the highest court in the land.  Although her selection represents the very worst of racial politics—she is not a leading light of the judiciary and would not have been considered had she not been a Hispanic woman—her career achievements show that the American Dream endures.

What makes the American Dream possible, however, is the rule of law, which in this country is ultimately guaranteed by the Constitution.  The Constitution provides for a very specific government structure, with checks on each branch’s powers designed to maximize liberty and eliminate arbitrary and capricious rule.  To that end, officers of the judicial branch—judges—are to make their decisions irrespective of the race, religion, or riches of those who come before them.  And judges are to interpret the Constitution as written text.  If they set aside the text and rule based on their own notions of fairness, then they act as unelected legislators or, worse, extra-constitutional amenders of our founding document.

Nominee Sotomayor knew all this, which is why the testimony she gave at her confirmation hearings disclaimed many of her previous speeches and writings, even going so far as to reject President Obama’s “empathy” standard—the idea that a judge applies the law differently when a litigant is sympathetic in some politically correct way.  While she was evasive most of the time—reason enough to vote against her—when she did say something about judicial philosophy, it was often indistinguishable from the words of John Roberts or Samuel Alito (as evidenced by the frustration of left-wing commentators).  And for good reason: in poll after poll, the American people overwhelmingly support a vision of the judicial role as one of enforcing the law as written, not of imposing their own policy preferences or vision of justice.

Kudos from this exercise go to those Republicans whose hard questions and thoughtful statements elevated the discussion of the Constitution beyond mere abstractions, so Americans could better understand the significance of ideological differences over the judicial role, or the use of foreign law in interpreting the Constitution, or property rights, or employment discrimination.  In walking away from so many controversial positions, Sonia Sotomayor established a new standard to which all future nominees will at least have to pay lip service.  While confirmation was almost a foregone conclusion from the start because of the Democrats’ strong Senate majority, the Republicans played well the cards they had been dealt by engaging in a serious discussion about constitutional interpretation and jurisprudential philosophy.

The Folly of Hate Crime Laws

That’s the title of Richard Cohen’s op-ed in yesterday’s Washington Post. Cohen highlights the futility of using a hate crime to prosecute the Holocaust Museum shooter:

In von Brunn’s case, the hate-crime counts are an obscenity. To suggest that the effects of this attack were felt only by the Jewish or the black communities – and not, for instance, by your average Washington tourist – ghettoizes both its real and purported victims. It’s a consequence that von Brunn himself might applaud.

I couldn’t agree more.